Academic journal article Fordham Urban Law Journal

Second Amendment Standards of Review in a Heller World

Academic journal article Fordham Urban Law Journal

Second Amendment Standards of Review in a Heller World

Article excerpt


I.   The Supreme Court's Heller Decision
II.  The D.C. Circuit's Heller II Decision
     A. The Majority Opinion
     B. The Kavanaugh Dissent
III. Applying Heller
     A. The Rights and Wrongs of the Majority Approach in
        Heller II
     B. A Better Approach: Eze11 v. City of Chicago


In 2008, in District of Columbia v. Heller, the Supreme Court invoked the Second Amendment to invalidate a law that forbade almost all citizens from possessing a handgun or other operable firearm. Since that decision was announced, the lower courts have resolved a large number of Second Amendment challenges to less restrictive gun control laws. This Article reviews and evaluates the principal debates that have arisen in the federal courts, focusing primarily on a sharply divided panel decision from the D.C. Circuit and a majority opinion from the Seventh Circuit. The three opinions considered in this Article articulate the most important extant alternative interpretations of the Supreme Court's Heller opinion. The Article concludes that the approach taken by the Seventh Circuit is superior to either of the approaches offered in the D.C. Circuit case.


For a long time, gun rights advocates have hoped that the Supreme Court would begin reviewing gun control laws under the standard of "strict scrutiny," which requires the government to demonstrate that its regulations are narrowly tailored to serve a compelling governmental interest. (1) Gun control advocates would prefer "rational basis" review, which requires the government only to articulate some legitimate purpose that the legislature could conceivably have sought to serve with its regulations. (2)

In District of Columbia v. Heller, (3) the seminal case involving a general ban on the possession of any handgun or other operable firearm, the United States urged the Court to adopt a standard of "intermediate scrutiny." Relying primarily on a First Amendment free speech case upholding a ban on write-in voting, the federal government urged the Court to remand the case with instructions to balance the degree of the burden on constitutionally protected conduct against the strength of the government's regulatory interests. (4) When the Solicitor General pressed this point at oral argument, Chief Justice Roberts expressed his skepticism:

   Well, these various phrases under the different standards that are
   proposed, "compelling interest," "significant interest," "narrowly
   tailored," none of them appear in the Constitution; and I wonder
   why in this case we have to articulate an all-encompassing
   standard. Isn't it enough to determine the scope of the existing
   right that the amendment refers to, look at the various regulations
   that were available at the time, including you can't take the gun
   to the marketplace and all that, and determine how these--how this
   restriction and the scope of this right looks in relation to those?

   I'm not sure why we have to articulate some very intricate
   standard. I mean, these standards that apply in the First Amendment
   just kind of developed over the years as sort of baggage that the
   First Amendment picked up. But I don't know why when we are
   starting afresh, we would try to articulate a whole standard that
   would apply in every case? (5)

When the Court issued its opinion in Heller, Justice Scalia's majority opinion rather pointedly declined "to articulate some very intricate standard." (6) But neither did the Court adopt the approach that Chief Justice Roberts suggested at oral argument. Notwithstanding the opinion's extended examination of the historical record before and after the ratification of the Second Amendment, it did not "determine the scope of the existing right that the amendment refers to." (7) The Chief Justice clearly was referring to the scope of the right to bear arms as it was understood in 1791, and the Court's opinion does pay lip service to that standard. …

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